Ordered liberty

The concept of ordered liberty was the initial standard for determining what provisions of the Bill of Rights were to be upheld by the states through the Due Process Clause of the Fourteenth Amendment. The Fourteenth Amendment encompasses all of the guarantees on fundamental fairness included in, or that arose from, the Bill of Rights rather than a small class of provisions essential to ordered liberty. According to some legal scholars,[9][10][11][12] the Fourteenth Amendment of the United States Constitution covers all the protections of fundamental fairness contained in or that emerged from the Bill of Rights, rather than only a few provisions deemed crucial to "ordered liberty." This view suggests that the Fourteenth Amendment requires states to respect the specific rights spelled out in the Bill of Rights and the general principles of due process and equal protection under the law.[13]

This interpretation of the Fourteenth Amendment is rooted in the Supreme Court's decisions over time, which have recognized that it incorporates various rights from the Bill of Rights that are fundamental to our system of justice.[14] For example, the Court has held that the Fourteenth Amendment protects the right to freedom of speech,[15] the right to bear arms,[16] and the right to counsel,[17] among other rights.

When referring to ordered liberty with respect to the legality of abortion in the Dobbs v. Jackson Women's Health Organization ruling Justice Samuel Alito writes:

"The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely—the Due Process Clause of the Fourteenth Amendment.” Further, Alito comments, "That provision has been held to guarantee some rights that are not mentioned in the Constitution, but any such right must be 'deeply rooted in this Nation's history and tradition' and 'implicit in the concept of ordered liberty.'"

Justice Clarence Thomas suggests that the Dobbs v. Jackson Women's Health Organization ruling on Roe V. Wade is an opportunity to “correct the error” of legal gay marriage; in his written opinion, he contends that Obergefell will continue to have “ruinous consequences for religious liberty.”

Thomas writes that the Supreme Court "should reconsider all of this Court's substantive due process precedents, including Griswold, Lawrence, and Obergefell; he contends that those precedents were "demonstrably erroneous":

• Griswold v. Connecticut (1965) established that married couples have a right to purchase and use contraception without government interference in a 7-2 decision.

• Lawrence v. Texas (2003) showed that criminal penalties for sodomy or private sexual acts between consenting adults are unconstitutional. That decision came down in a 6 to 3 ruling.

• Obergefell v. Hodges (2015) ruled that the fundamental right to marry is guaranteed to same-sex couples by the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution in a 5 to 4 Supreme Court decision.

The Court clarified in the United States v. Carolene Products Co. that in its interpretation of the Fourteenth Amendment, more judicial scrutiny might be applied to laws that inhibit rights specified in the Bill of Rights, laws that impose “restrictions upon the right to vote,” or laws that express “prejudice against discrete and insular minorities.”

Protection of “ordered liberty” means that some minor restrictions on various activities will be upheld because by safely establishing public order, more opportunities are provided for us to exercise our liberties freely. Specifically in this case, a section known as footnote 4, states that there is a need for special protection of "religious . . . or national ... or racial minorities" and this protection may from time-to-time require additional judicial inquiry.[21]